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If your fire goes out of control, are you liable?

Saturday, Aug. 11, 2018 5:16 AM

Zimsky

Because it’s been raining a bit over the last week, you decide to use your burn pit to get rid of some garbage that you don’t want to haul to the landfill.

The wind suddenly picks up, launching a slew of embers 50 feet into the air. A few of those embers ignite when they land a few hundred feet downwind on grass that is much drier than you assumed. The grass fires run quickly into large stands of pines and junipers and, next thing you know, there’s a 15,000-acre inferno that, after destroying 10 homes, is now raging in the national forest.

Are you liable for the damages caused by the fire? Probably.

Normally, you have to act “negligently” to be held liable for damages that your actions cause. (Negligence is defined as “a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances.”) However, when it comes to causing a fire, under certain circumstances you can be liable without any showing of negligence.

Section 13-21-105 of the Colorado Revised Statues provides that if you set fire “to any woods or prairie so as to damage any other person” then you are responsible for those damages.

If you do so during a state of emergency or disaster because of drought as declared by the governor, you are liable for three times the damages, subject to certain exceptions, such as agricultural operations and authorized forest management activities.

This statute appears to impose strict liability, that is, you will be held liable for damages caused by the fire even if you were not negligent in allowing the fire that you started to spread. While no court has ruled specifically on the issue of strict liability, courts have held this statute does not apply to a situation in which you did not intend to start a fire, but instead cause a fire by, say, creating a spark while mowing your lawn – more on that later. (The statute that applies to railroads, § 40-30-103, imposes strict liability on a railroad that causes a fire “whether negligently or otherwise.”)

Even if Section 13-21-105 does not impose strict liability, if you start a fire that you intended to limit to a burn pit, campfire or irrigation ditch, and it gets away from you, it is very likely you will be found to be negligent, especially if you have not taken any precautions to prevent the spread of the fire. High winds and/or a change in wind direction are not unexpected events that might otherwise exonerate you from liability. Moreover, if you engage in any prohibited activity, such has having an open fire during Stage II fire restrictions, then you are “negligent per se” with respect to the fire. That is, because you violated a rule adopted for the public’s safety and that violation caused injuries to the people the stature or rule was meant to protect, it evidences negligence. Although acting negligently per se does not necessarily lead to a finding of negligence, it will in most cases. In addition to bodily injuries, you could be held liable for the cost of suppressing the fire, property damage, costs to rehabilitate the land and, possibly, loss of business damages. Those costs could be enormous.

For example, the United States is suing a California homeowner alleging that he improperly maintained an electrical junction box that allegedly caused the Mountain Fire in 2013 that scorched about 27,531, acres, including approximately 15,335 acres in the San Bernardino National Forest. The government is seeking in excess of $15 million in suppression costs, in excess of $9 million in damages to the natural resources and in excess of $300,000 in emergency rehabilitation costs.

Oregon billed two men $37 million for fire suppression costs with respect to the 2015 Stouts Creek Fire, alleging that they started the fire when their lawnmowers struck rocks, creating sparks that started fires that eventually burned more than 26,000 acres. The men were negligent per se because they were mowing their lawns in the afternoon when fire restrictions banned such activity.

You will be held liable for damages to a business if those damages are a natural and probable consequence of the fire. Thus, if the fire disrupts your neighbor’s ranching operations or burns down a store, you will be liable for those damages.

Please respect the inherent dangers of fire and follow all fire restrictions that are in place; even a small “contained” fire can easier get away from you. Realize that even if it does rain, grass, shrubs and trees dry out quickly. To do otherwise, you might not only harm your community, you could ruin your family’s financial well-being.

William E. Zimsky is a volunteer firefighter and EMT with the Fort Lewis Mesa Fire Protection District. He practices oil and gas law in Durango with Abadie & Schill, P.C.

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